I dissent from the majority opinion on the following grounds:
I. This case is controlled by Act 155 of 1937, rather than by Act 391 of 1941, and, under the provisions of Act 155, as construed in the case of McKinley, Commissioner of Labor, v. R. L. Payne Son Lumber Company, *Page 64 200 Ark. 1114, 143 S.W.2d 38, the services involved were those of employees and not independent contractors.
II. This suit is in reality against the state, and, as such, is forbidden by the constitution of Arkansas.
In the trial of the case at bar, no evidence was heard; but it was agreed that it should be determined upon the evidence adduced in the case of Crossett Lumber Company v. McCain, Commissioner, 205 Ark. 631, 170 S.W.2d 64. The question in that case was whether certain timber cutters engaged in cutting and logging timber on lands of the Crossett Lumber Company to supply timber to the mills of the Crossett Lumber Company were employees of the Crossett Lumber Company, within the meaning of the Unemployment Compensation Law, or were employees of independent contractors of the Crossett Lumber Company.
This court, in the case of Crossett Lumber Company v. McCain, supra, set forth at length the findings of fact by the Industrial Board, which had been adopted by the circuit court, the correctness of which findings is not challenged, as follows:
"There are numerous individuals who operate under written agreements with the company and in most instances identical; that said contracts were made for a period of one year unless sooner canceled by the parties, each of which had a right to cancel same without cause upon three days' notice. The company employs district supervisors who are in charge of operation on respective tracts of land and these employees have entire supervision over all of the forests and over the individuals who cut and remove timber therefrom. The supervisor makes the contracts for and on behalf of the lumber company with the individuals to cut and remove said timber and designates the timber for them to cut and remove, has full control over the quantity of timber cut and removed under said contract, and in some instances exercised control over the claimants who were cutting and removing said timber. It is the duty of the supervisor to see that the contract is complied with and to move the timber cutters *Page 65 from place to place at will. The supervisor had full control over the amount of time worked by the timber cutters and controlled the amount of timber cut and delivered and to stop the work entirely at the pleasure of the lumber company. There was never any discussion with reference to the making of the agreements between the company and contractors. The contractors were required to sign them by the supervisor who presented them to them for their signature. Most of the contractors never read the contract. The company changed the type of contract used by them in 1940. The new form provided that the owner should have no control over the contractor. There was no change in the operation and the methods by the company at the time it changed its contracts, but the work was carried on in the same manner in which it had been carried on for a number of years."
The testimony showed that these timber cutters were hired by Walter Holland, who had been employed by the Crossett Lumber Company under a written contract. It is contended that the relation of owner and independent contractor was created between the company and Holland, by this contract, which is as follows:
"Whereas, Crossett Lumber Company of Crossett, Arkansas, hereinafter called `owner,' is the owner of certain timber lands from which it is desired that certain of the forest products thereon be cut and delivered to it as provided herein; and whereas, Walter Holland, of Hamburg, Arkansas, hereinafter called `contractor,' is engaged, or is equipped to engage, in the business of cutting and hauling forest products upon a contract basis; it is therefore mutually agreed between the parties as follows: 1. Beginning on or about July 19, 1940, the said contractor is to cut from the following described lands: Crossett Lumber Company lands in east block, Ashley county, Arkansas, only the following forest products: Chemical wood of such kind, grade, length and size as, from time to time, may be specified by the owner, the same to be delivered to the owner at the following location: Crossett Lumber Company logging railroads at the rate of not less than 25 parcels nor more than 150 parcels *Page 66 during each week of the term of this contract. 2. Contractor agrees that all such forest products shall be cut and handled without unnecessary waste, and without unnecessary damage or injury to timber left standing: the work to be done in a workman like manner which shall be (in the opinion of the owner) in accordance with sound practices of timber conservation and reproduction, as advocated by federal and/or state authorities: owner shall have no control over contractor — but contractor, exercising an independent employment, will do the work according to his own methods, without being subject to control of owner, except as to the result of the work to be done. 3. The owner agrees to pay the contractor upon delivery, but not more frequently than once each week, for all of said products cut and delivered under this contract, according to the owner's current published rate schedule in effect at date of delivery. 4. The contractor agrees that this contract shall be revocable by the owner immediately upon written notice if at any time the said contractor shall fail to furnish to the owner, whenever requested by the latter, satisfactory evidence that the said contractor has complied with all state and federal laws and regulations (including, but not limited to, the Fair Labor Standards Act of 1938), now or hereafter in effect, the violation of which by the said contractor would subject the owner to any liability or responsibility. The contractor further agrees, at the request of the owner, to present for inspection at the office of the owner, his books, records and other documents relating to the wages and hours of his employees. 5. This contract shall remain in force for a period of one year from the date hereof, unless sooner canceled at the option of either party by three days' written notice to the other party mailed to him or it at his or its last known postoffice address."
This contract, while apparently designating Holland as an independent contractor, contains two provisions which tend strongly to negative this relation: The contract provides that the Crossett Lumber Company may discharge the so-called independent contractor at any time; and it provides that all of the work is to be done "in accordance with sound practices of timber conservation *Page 67 and reproduction," as finally determined by the opinion of the Crossett Lumber Company.
The general rule is that to establish the relation of "owner" and "independent contractor" it must be shown that by the contract of employment the "independent contractor" is permitted to do the work in his own way and without any control by the employer as to methods of work.
What more effective control over the methods of work could be retained by the employer than the right to terminate the employment at any time? It is idle to say that the employer could not control the methods of work when, under the contract of employment, the employer could discharge the contractor at any time. No more effectual means of control of the methods of work could possibly be put in the hands of the employer than to give him the right to discharge without cause a so-called "independent contractor" at any time.
"The power of an employer to terminate a contract at any time, irrespective of whether there is or is not a good cause for so doing, is indisputably an evidential element which tends strongly to show that the person employed is not an independent contractor. There is even some authority for the doctrine that the probative force of such power is virtually decisive." 27 Am.Jur., p. 501.
In the case of Frost v. Blue Ridge Timber Corporation,158 Tenn. 18, 11 S.W.2d 860, the supreme Court of Tennessee said: "In Odom v. Sanford Treadway, supra (156 Tenn. 202, 299 S.W. 1045), this court quoted with approval from Ruling Case Law (vol. 14, p. 67):' In this connection, the ultimate question is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control.' And again `The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show the subserviency of the employee. Indeed, it has been said that no single fact is more conclusive, perhaps, than the unrestricted right of the employer *Page 68 to end the particular service whenever he chooses, without regard to the final result of the work itself.'156 Tenn. 210, 299 S.W. 1047, quoting from 14 R.C.L., p. 72. The two circumstances mostly relied upon by the employer to place Frost in the status of an independent contractor are the fact that he was paid according to the amount of work done, and the fact that the employer's superintendent did not exercise control over the amount of work done. These circumstances are not conclusive, as is clearly indicated by the authorities cited, since they do not exclude the employer's right to control or to terminate the employment at will."
The Supreme Court of Maine, in Murray's Case,130 Me. 181, 154 A. 352, 75 A.L.R. 720, said: "Our court has said in Dobson's case, supra (124 Me. 305, 128 A. 401,42 A.L.R. 603), that the right to discharge the employee at will is not, taken alone, the decisive test as to whether or not he is an independent contractor, but that fact strongly tends to establish the relationship. `The power of an employer to terminate the employment at any time is incompatible with the full control of the work that is usually enjoyed by an independent contractor.' Bowen v. Gradison Construction Co., Oct., 1930, 236 Ky. 270,32 S.W.2d 1014. `No single fact is more conclusive as to the effect of the contract of employment, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself.' Cockran v. Rice,26 S.D. 393, 128 N.W. 583, Ann. Cas. 1913B, 570. `The power to discharge has been regarded as the test by which to determine whether the relation of master and servant exists. While it is not the sole test, it is the best test upon the question of control.' Messmer v. Bell ( Coggeshall Co.), 133 Ky. 19, 117 S.W. 346, 19 Ann. Cas. 1. By virtue of its power to discharge, the company could, at any moment, direct the minutest detail and method of the work. The fact, if a fact, that if it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor.' Franklin Coal Coke Co. v. Industrial Comm., 296 Ill. 329, 129 N.E. 811. `The most important *Page 69 point `in determining the main question (contractor or employees) is the right of either to terminate the relation without liability'." Industrial Comm. v. Hammond, supra (77 Colo. 414, 236 P. 1066); Industrial Comm. v. Bonfils, 78 Colo. 306, 241 P. 735; Barclay v. Puget Sound Lumber Co., 48 Wash. 241, 93 P. 430, 16 L.R.A., N.S. 140; Nyback v. Champagne Lumber Co., (7 Cir.) 109 F. 732; Evans v. Dare Lumber Co., 174 N.C. 31,93 S.E. 430, 30 A.L.R. 1498."
In sustaining the finding of the lower court that one Bashko, a timber cutter, who furnished his own tools and worked on a piecework scale, was a servant and not an independent contractor the supreme Court of Minnesota, in the case of State ex rel. v. District Court,128 Minn. 43, 150 N.W. 211, said: "They (the employers) had the right to discharge him at any time, and this right afforded adequate means for controlling the work."
In Kelley's Dependents v. Hoosac Lumber Company,95 Vt. 50, 113 A. 818, it was shown that Kelley and Beers made a contract with the company to cut and haul logs at $12 per thousand. Their contract ran for no particular period, but could be terminated at any time. Kelley and Beers furnished teams and drivers, but the company furnished tools. It was held by the supreme Court of Vermont that Kelley was an employee, and not an independent contractor.
In Sempier v. Goemann, et al., 165 Wis. 103,161 N.W. 354, Ann. Cas. 1918C, 670, it appeared that Sempier was paid by one Cherf, who had a contract to pile logs for a certain price per thousand. It was, nevertheless held in that case that Cherf was not an independent contractor and that Sempier was the employee of the person who had the general contract for this work.
In Evans v. Dare Lumber Co., 174 N.C. 31,93 S.E. 430, 30 A.L.R. 1498, Spruill was operating a lath room for the company for 60 cents per 1,000 laths made. He selected, hired and paid all his helpers. Under Spruill's contract with the company, the company could terminate his employment at any time. In that case the court said: "In this case the employer had power to terminate *Page 70 Spruill's employment at any time. This gave the defendant potential control over him, and is conclusive that Spruill was not an independent contractor, for whose negligence the defendant was not responsible. It is said in 14 R.C.L. 72, that it is idle and vain to assert that an employee is an independent contractor because he has the sole right to hire and discharge his help when his own employer has the unquestioned right to terminate the contractor's employment at will."
But the parties to the contract under consideration here were not content to leave the control of methods of work dependent on the right of the employer to discharge, but they went further and in plain English stated that the work should be done "in a workmanlike manner which shall be (in the opinion of the owner) in accordance with sound practices of timber conservation and reproduction, . . ." In other words, under this contract, the opinion of the owner controls finally and absolutely on any question arising as to the manner in which these workmen were carrying on their cutting and logging operations.
The parties entered into a written contract the language of which unmistakably proclaims the relation created to be that of master and servant, and the fact that the contract declares that the relation created is that of owner and independent contractor should not be determinative. The relation actually created by the contract, rather than the name arbitrarily conferred on the relation by the draftsman of the contract, should govern.
When this question was before the court in the case of Crossett Lumber Company v. McCain, Commissioner, supra, the majority of the court held that the relation was that of independent contractor, and justified this holding on the ground that the case was controlled by the provisions of Act 391 of 1941, which was said to be retroactive. The claim involved was filed on July 9, 1940, covering unemployment which had occurred prior to that date, and the claim was heard by the Appeals referee on June 5, 1941, all done before the effective date of Act 391 of 1941, which was July 1, 1941. *Page 71
Act 391 changed subdivisions (A), (B) and (C) under 2(i)(5) of Act 155 of 1937 so as to use the disjunctive "or" instead of the conjunction "and" in connecting these subdivisions, and by adding the following at the end of subsection (C): `provided, however, this act shall be construed to apply only where the legal relationship of master and servant exists; and independent contractors, as defined by the common law of the state, shall be deemed employers, or the employing unit, and not employees; the foregoing definition governing employment relationship shall apply solely for the purpose of the administration of this act and for no other purpose. The statutory employee created by this act shall not abrogate the common law definition of master and servant as the same applies in actions in tort, nor shall the supervision and control required for the purposes of this act to be exercised by an employing unit over said statutory employees be admissible in actions in tort."
In discussing this change the majority of the court, in the case of Crossett Lumber Company v. McCain, Commissioner, supra, said: "This provision of Act 391 was no doubt enacted to correct or amend our opinion in McKinley v. Payne Son Lumber Co., supra, where language was used which appears to have been unnecessary to a decision of the case, to the effect that the statutory (A), (B), (C) definition of an independent contractor was broader than the common-law concept thereof. We do not mean to impair or overrule the holding in that case that the employee, Bailey, was not an independent contractor. Under the facts in that case he was an employee. Whether such was the purpose, it is now made clear and certain that `independent contractors, as defined by the common law of the state, shall be deemed employers, or the employing unit, and not employees.'"
In my dissenting opinion in the case of Crossett Lumber Company v. McCain, Commissioner, supra, I endeavored to point out that in view of 13284 of Pope's Digest it was clearly the intention of the legislature, in enacting Act 391 of 1941, not to make it retroactive as to claims arising, or proceedings instituted, under Act 155 of 1937. *Page 72
In the case at bar the majority of the court, in dealing with the relationship of the same parties and with the status of the same service as was under consideration in the case of Crossett Lumber Co. v. McCain, supra, apparently abandons the position taken in the former case and agrees with the writer that the question of the character of the relationship that existed between these parties must be determined under Act 155. Nor does the majority now overrule the opinion in the case of McKinley v. R. L. Payne Son Lumber Co., 200 Ark. 1114,143 S.W.2d 38, but allows it to stand and attempts to distinguish the facts in that case from those in the one at bar. An examination of the testimony will disclose that there is no substantial difference between the facts as to the relation of the parties in that case and in the instant case.
In the McKinley case, the Commissioner of Labor was attempting to collect from R. L. Payne Son Lumber Company unemployment contributions covering certain workmen who, according to the contention of the lumber company, were not employed by the lumber company but were employed by George Bailey, an independent contractor. The lower court enjoined the collection of the tax, holding that the employees of Bailey were not in reality the employees of R. L. Payne Son Lumber Company and that the lumber company was not liable for the unemployment tax based on their employment; but this court reversed the decree of the lower court and declared that Bailey was not an independent contractor and that his workmen were in reality employees of the lumber company. The testimony showed that the lumber company had made a contract with Bailey to move the lumber from the mill where it was being produced out on the yard and to stack it there; that Bailey hired and discharged his own men; that the manager of the mill did not exercise any control over Bailey's men, but if there was any complaint about the method of stacking the lumber he would go to Bailey about it; that Bailey kept the time of his men and turned it over to the company's bookkeeper, and the amount paid these men was deducted from the amount payable to Bailey. This court, in its opinion in that case, said: *Page 73
"While Mr. Payne calls Bailey an independent contractor, the evidence conclusively shows that he was a mere employee, and that Payne had the right not only to control him so as to prevent lumber being blocked, but had the right to discharge him. But whether he would be classed as an independent contractor under the common law, we think, is immaterial because under the Unemployment Compensation Act he was an employee. Section 8550 of Pope's Digest provides that the term `employment,' subject to the other provisions of this subsection, means `service, including service in interstate commerce performed for wages or under any contract of hire written or oral, express or implied.' Said section also provides: `Services performed by an individual for wages shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commissioner that: (A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact, and (B) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.' it cannot be contended that under the evidence in this case Bailey was free from control or direction over the performance of his services, both under his contract of service and in fact. But even if that were true, it would have to further appear that such service is either outside of the usual course of business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed, and that is not shown. In addition to that, it would have to appear that Bailey was customarily engaged in an independently established trade, occupation, profession or business, and the evidence does not show this. In discussing a statute similar to ours, the supreme Court of Utah said: `Section 19 is a section on definitions and provides a glossary which pertains to the act. *Page 74 These definitions may differ from the common-law concepts designated by the same words. The above quoted section 19(j)(5) signifies a relationship entitled to benefits of the act beyond that of a mere master and servant relationship.' Globe Grain Milling Co. v. Industrial Commission, 98 Utah 36, 91 P.2d 512. The Utah statute construed by the supreme Court in the above case, is the same as our statute. The burden of showing these matters of exemption is placed by the statute upon the appellee, and since they are stated conjunctively and not disjunctively, all three of these elements must be shown in order that exemption from the act be secured. Unemployment Compensation Commission of North Carolina v. Jefferson Standard Life Ins. Co.,215 N.C. 479, 2 S.E.2d 584. Statutes similar to the one under consideration have been construed. Industrial Commission v. Northwestern Mutual Life Ins. Co.,103 Colo. 550, 88 P.2d 560. In the interpretation of statutes, the primary rule is to ascertain and give effect to the intention of the Legislature, and this intention and meaning must primarily be determined from the language of the statute itself, and not from conjecture aliunde. 25 R.C.L., 216, et seq."
Another portion (subdivision g) of 8550, not quoted by Judge Mchaffy in his opinion in the Payne case, which, in my opinion, indicates that the workmen whose services are under consideration here were employees within the meaning of this act is as follows:
"Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this act, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work."
The majority of the court apparently holds that this case should be decided under the provisions of Act 155 of 1937, and, further, that the court's decision in the Payne case was correct. Applying that act and that decision to *Page 75 the evidence in the case at bar, the conclusion is irresistible that these workmen were in fact and in law, in respect to Act 155, the employees of the Crossett Lumber Company, and not of the woods foremen whose status, it is contended, is, merely by the language of a printed contract, converted into that of an independent contractor.
II. It is conceded in the majority opinion that the fact that the suit was brought against a state official, instead of against the state itself, does not prevent this from being an action against the state.
In the case of Pitcock v. State, 91 Ark. 527,121 S.W. 742, 134 Am. St. Rep. 88, Chief Justice McCULLOCH, speaking for the court, said: "A sovereign state cannot be sued except by its own consent; and such consent is expressly withheld by the constitution of this state. . . . The question whether a suit is one against a state is not necessarily determined by reference to the parties to the record. If the state is the real party in interest, though only its officers and agents are parties, then it is in effect a suit against the state, and falls within the rule of prohibition."
Nor is it denied that this is a suit to recover from a state official excise taxes collected by the state in its sovereign capacity. "The parties here correctly refer to the contributions (levied under the same act as is under consideration) sought to be collected as an excise tax. See Buckstaff Bath House Co. v. McKinley, Commissioner, 198 Ark. 91,127 S.W.2d 802." McCain, Commissioner of Labor, v. Farmers Electric Cooperative Corporation, ante, p. 15,172 S.W.2d 933.
But the majority holds that this is not a suit against the state because, as the majority says, it must be inferred that the commissioner was holding in escrow the money that he collected from the Crossett Lumber Company and that this money has not been mingled with other money collected for the same purpose. Such an inference, if well founded, would not prevent this from being a suit against the state, but there is nothing in the record, *Page 76 there is not a syllable of testimony, to justify such an inference, nor was any such contention urged in any of the briefs or in any of the oral arguments made in this court. In fact, such an inference is contrary to the law. The law under which this money was collected prescribes in detail what should be done with funds thus collected. By the law certain distinct accounts are created for the proceeds of the collections arising from this tax and certain depositories for these funds are designated. The majority in its opinion says that it must be inferred that "the moneys so paid to the commissioner by Crossett under protest at no time were mingled with or became a part of the funds of the state . . ," but the law, 8557 of Pope's Digest, after authorizing creation of the unemployment compensation fund, provides (subdivision (a)(5)): "All moneys in the fund shall be mingled and undivided." Thus the legislature explicitly directed the doing of the thing which the majority says it must be inferred was not done.
There is nothing in the law that provides for any escrow fund or trust fund in which this money may be held by the commissioner pending the outcome of any litigation. If the commissioner had been holding these funds in such account he would have been doing it in violation of the law and in violation of his official oath. The law presumes that public officials discharge their duty. "In the absence of any proof to the contrary, there is a presumption that public officers have properly discharged the duties of their office and have faithfully performed those matters with which they are charged." 43 Am.Jur., 254.
By 22 of art. IV of the Constitution of Arkansas of 1836 it was provided: "The General Assembly shall direct by law in what courts and in what manner suits may be commenced against the State."
Section 21 of art. IV of the Constitution of Arkansas of 1861 is as follows: "The General Assembly may direct, by law, in what courts, and in what manner, suits may be commenced against the State."
Section 22 of art. IV of the Constitution of Arkansas of 1864 is as follows: "The General Assembly shall direct *Page 77 by law in what courts and in what manner suits may be commenced against the State."
Section 45 of art. V of the Constitution of Arkansas of 1868 is as follows: "The General Assembly shall direct by law in what manner and in what courts suits may be brought by and against the State."
In our present constitution (of 1874) no provision whatever for any suit against the state is made. On the contrary, by 20, art. V, it is provided: "The State of Arkansas shall never be made defendant in any of her courts."
It thus appears that the men who wrote our constitution, having before them the provisions in our previous constitutions empowering the General Assembly to authorize suits against the state, deliberately chose to forbid absolutely such actions.
The historical background, as well as the plain letter, of the constitution, shows an unmistakable intention on the part of those who framed our organic law to prohibit the courts of Arkansas from entertaining jurisdiction of any suit against the state. This plain mandate of the constitution ought to be respected and enforced. It ought not to be circumvented by specious logic and tortuous reasoning based on unwarranted inferences.
McFADDIN, J., dissenting. I respectfully dissent from the majority herein, because, in my opinion, this is clearly a suit against the State of Arkansas, and therefore cannot be maintained. This issue was not raised by the appellants, and was not discussed in the briefs, but was injected into the oral argument before this court; and thus both sides had ample opportunity to discuss the issue. Besides, this is a matter of jurisdiction that raises itself; this court has no jurisdiction to allow a suit to be maintained against the state unless the state has, by constitutional and legislative process, permitted herself to be sued in her courts.
I find no provision, either in Act 155 of 1937 or in Act 391 of 1941 (being the acts under which appellee proceeded herein) that gives any taxpayer the right to pay *Page 78 under protest or agreement and then sue for recovery. Subsection D of 14 of Act 391 is the section that the appellee claims to justify this proceeding; but a study of that section shows the contention of the appellee to be unsound. The commissioner could make an adjustment under that section if the commissioner so desired; but the commissioner refused to make the adjustment, and the act does not empower the courts to make the adjustment that the commissioner refused. The section certainly does not allow a dissatisfied taxpayer to go into court and sue the commissioner to make the adjustment that the taxpayer wants; but the very fact that the appellee can cite only this section for the maintenance of this suit clearly indicates that no other section can be found.
In the absence of any provision in either of the acts mentioned above, we look to the general law to see if there is any general provision of law that would give a taxpayer the right, in a suit like this, to pay the taxes and sue for recovery. I find no such law. The Crossett Lumber Company has cited the case of Paschal v. Munsey,168 Ark. 58, 268 S.W. 849, as authority for a taxpayer to pay the taxes and sue for recovery, but that case does not sustain the position of the Crossett Lumber Company in the case at bar. In fact, a study of the case shows that it sustains the opposite contention. In Paschal v. Munsey, there was a proceeding under 10180 of Crawford Moses' Digest for the recovery of land taxes erroneously paid. The section is now 13963 of Pope's Digest and no one can seriously contend that the statutory authority in 13963 of Pope's Digest is broad enough to permit the kind of suit here involved. But the very fact that there is a statutory proceeding for the recovery of land taxes and there is no statute for the recovery of unemployment compensation taxes, would show clearly that the legislature of Arkansas had no intention of allowing a suit like the present one to be maintained. So we may conclude that there is no general statutory authority allowing a suit like the present one to be maintained.
We come then to the fact that without any legislative sanction the Crossett Lumber Company has filed and *Page 79 maintained this suit against McCain, Commissioner of Labor, and Shelton, Director of the Employment Security; and these parties are sued in their official capacities as officers of the State of Arkansas. The judgment of the lower court that this court is affirming reads as follows:
"Wherefore, the premises considered, it is by the court considered, ordered and adjudged that the plaintiff, Crossett Lumber Company, have and recover judgment against the defendants, W. J. McCain, as Commissioner of Labor of the State of Arkansas, and against Roland M. Shelton, as Director of the Employment Security Division of the Department of Labor of the State of Arkansas, and against all persons having the possession, custody or control of said funds and all defendants who may be involved in the execution and discharge of this judgment, in the sum of twenty-three thousand, seven hundred nineteen and 63/100 dollars ($23,719.63), together with all costs in this action incurred and accruing, for which let proper process of this court issue on demand of the plaintiff."
There is nothing in this record to show that the money paid by the Crossett Lumber Company was kept separate from other funds, and the judgment does not so state.
It cannot be said that the moneys collected from the Crossett Lumber Company were insurance moneys because in the case of Buckstaff Bath House v. McKinley,198 Ark. 91, 127 S.W.2d 802, this court held that moneys so collected were excise taxes. There is nothing in the statute that permits excise taxes to be held as trust funds or otherwise segregated.
McCain as Commissioner of Labor and Shelton as Director of the Employment Security Division were sued in their capacities as representatives of the State of Arkansas just as the State Highway Commission was a representative of the State of Arkansas in the case of Arkansas State Highway Commission v. Nelson Brothers,191 Ark. 629, 87 S.W.2d 394. In that case the previous line of decisions allowing a suit to be maintained *Page 80 against the Highway Commission was overruled, and it was recognized that a suit against the Highway Commission was a suit against the State of Arkansas. The application of that case to the case at bar is clear and convincing. To like effect, see Arkansas State Highway Commission v. Kincannon, Judge, 193 Ark. 450, 100 S.W.2d 969; Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235: and West's Arkansas Digest, "States," 192 and 193.
The Crossett Lumber Company cannot say that it is without redress. It can always appear before the legislature and seek relief. It is the function of the court to interpret the constitution and the statutes, and remit parties to the legislature to obtain relief not authorized to be obtained in the courts.
Therefore, for the reasons herein stated, I most respectfully dissent from the majority opinion herein.